Tuesday, November 25, 2008

BSA Madness for Carroll Gardens

Weare sorry to report that the BSA granted Mr. Stein the variance today to build Oliver House seven stories high as opposed to the mandates of the new text amendment which would have allowed only 5 stories.

The vote was unanimous on both applications: On the BZY application: the completion of the foundation which was only 20 per cent complete according to the DOB

and the A application which claimed the developer would suffer substantial economic financial loss.

Below we have copied an article from www.gowanuslounge.com about learning more about the BSA.

"Do you know what the Board of Standards and Appeals (BSA) is and what it does? Well, here’s a chance to learn, via a session called “Navigating the BSA that will take place on Monday, December 1. Per an email":

"In New York City, one body has the power to grant exceptions to certain local building laws and regulations on a case-by-case basis: the Board of Standards and Appeals (BSA). Once granted, such special permissions, known as variances, provide building owners and developers with legal, alternative approaches to the city’s Zoning Resolution, Building and Fire Codes, and Multiple Dwelling and LaborLaws. The BSA also hears appeals made by property owners, community groups, elected officials and the like who believe that a given commissioner or agency head has issued a ruling that is illegal.

"Comprised of five mayoral-appointed commissioners, the BSA is considered to be one of the most obscure but powerful bodies in city government. Yet many neighborhood advocates who have opposed or closely monitored construction projects in their neighborhoods have had to appeal to the BSA at one time or another. BSA Vice-Chair Christopher Collins will explain the basic steps of presenting to the Board, from how to navigate their procedures and requirements to how the most effective approach to formulating arguments.

"The Coffee Talk begins at 8:30am and is held at the Neighborhood Preservation Center, 232 East 11th Street, between Second & Third Avenues in Manhattan. All Coffee Talk events are free of charge.Reservations required. To RSVP, email hdc@hdc.org or call (212) 614-9107.

"Go forth and learn a lot." GL

We could not agree more.CORD

Also from GL a reminder of our Councilman's implicit support for the BSA:

Councilman’s Letter Avoids Pro or Con Stand on 360 Smith

"City Council Member Bill de Blasio has been involved in the debate over 360 Smith Street since it became a community issue in Carroll Gardens. He has been involved in most public forums over the issue and his office has practically become the official go-between with the community and the developer. Recently, the neigbhborhood group CORD has been challenging him to take a stand against the developer’s effort to build the condo to its full 70 feet rather than 55 feet allowed under altered zoning. A letter from one of CORD’s founders said":

“Where are you Councilman DeBlasio?”, we ask, as residents of Carroll Gardens who fought long and hard along with you to pass the zoning text amendment . This amendment which limits building height to 55 ft. will have no value, non, nada, if we allow even one new development to be absolved from its mandate. The claims of loss at the 360 site which is barely started, are incidental, and we need our Councilman to stand by our side at the BSA hearing to show his support. Our efforts through the past year will be futile if we let this go. You have been a strong force in our arduous endeavor to save our neighborhood and we appreciate all that you have done. It is vital that all our Politicians who were proponents of the amendment show their courage and determination by supporting their constituents at the BSA hearing. Where are you Councilman DeBlasio? Can we count on you to be there?

"The Councilman wrote a letter to the powerful board a week ago. In it, he does not recommend either approval or disapproval of the developers applications. He simply asks that the board “take the facts of each individual case and neighborhood preservation” into account in making a decision. " GL

HERE AGAIN IN FULL, WE PRESENT THE ARTICLE WRITTEN BY CITY

COUNCILMAN TONY AVELLA WHO IS ALSO HEAD OF THE LAND USE COMMITTEE:

Dateline : Thursday, August 07, 2008

Abolish the Board of Standards and Appeals!

By City Council Member Tony Avella

If the framers of the Constitution/Declaration ofIndependence were still alive today, I am confidentthey would cite the operation and existence of theCity’s Board of Standards and Appeals (BSA) as aperfect example of unrepresentative government.

It is time for this unresponsive, undemocratic bureaucraticbody to go!

For many New Yorkers, BSA is a totally unknown entity,yet its impact is being felt in every neighborhood in this City.A quasi-judicial agency, BSA is comprised of fivecommissioners appointed by the mayor for six-year termsto, in large part, issue variances to the zoning code.

It is the implementation of this responsibility that hasirked, frustrated and outright angered elected officials,community boards and residents.

The original mission of BSA was to provide a relief valvefor property owners in those rare circumstances whereexisting zoning regulations would prohibit them fromreasonably developing their property. I stress theword “rare.”

Unfortunately, BSA has been allowed to mushroom into ahuge loophole for developers who want to circumventthe law. For far too long developers have used BSA as“an old boys network” where a handful of law firmsrepresent hundreds of clients/developers trying tobuild in excess of existing building and zoning coderequirements.

While the borough presidents and community boardsroutinely submit comments on variance applications,their opinions are only advisory and often dismissed by BSA.

Despite BSA’s assertions to the contrary, boroughpresident and community board recommendationsare generally only successful in achieving very minorchanges to original plans. It is fascinating to note thatCity Council members have no official role in the process other than to receive a copy of the application.

When reviewing applications, BSA must evaluate therequest in terms of the following five criteria:

* Does the unique condition of the property preventreasonable development?* Would unique property conditions prevent an ownerfrom obtaining a reasonable financial return?* Does the variance, if granted, alter the essentialcharacter of the neighborhood?* Is the situation the result of a self-imposed hardship?(In other words – you cannot buy a property knowingthe restrictions and then claim hardship.)* Is the variance requested the minimum necessaryto afford relief?

Unfortunately, BSA routinely disregards these guidelines.The self-imposed hardship restriction is rarely enforced. The BSA requirement that the variance will not alter the character of the neighborhood is a joke! It is never really considered.

And why does the city, through BSA, reward developers for making a bad financial decision. If you own any othertype of business in this city and make a bad investmentor your business fails, the city does not bail you out. But,BSA will grant a financial hardship variance for developerswho make poor judgments or risky investments.

This practice clearly demonstrates the huge politicalinfluence that the real estate industry enjoys in this city.It is a foolproof system that rescues developers fromtheir own incompetence and investment mistakes.

To justify their favorable actions towards developers,BSA will frequently rely on their “quasi-judicial” statusas a defense. This convenient excuse provides politicalcover for their lack of common sense and failure to adhere to the five variance criteria. Yet, thequalifications for appointment to the board saynothing about being an attorney.

The only qualifications mentioned in the City Charterare that one commissioner shall be a registeredarchitect with at least 10 years’ experience as anengineer and one shall be a planner with professional qualifications and with at least 10 years’ experienceas a planner.

Why is there no requirement that the Commissionershave legal experience? Because it was never meant to be the final legal arbiter of these land use issues.

Ever since the old Board of Estimate was eliminated, theonly recourse for New Yorkers to appeal BSA decisions is to file an Article 78 lawsuit against the city – a time consumingand expensive proposition. Good luck in trying to getsatisfaction by that route!

When the Board of Estimate was in existence, BSA decisions could be appealed to that legislative body. Under thatsystem, at least New Yorkers had the opportunity topress their case for justice before officials elected by thepeople as opposed to the appointed bureaucrats on BSA.

Since taking office in January of 2002, I have authored several pieces of legislation in an attempt to reform thisagency. Unfortunately, all of them are languishing inthe City Council as a direct result of the pressureexerted by the real estate industry and the oppositionfrom the Mayor’s Administration.

In order to address the lack of oversight and anappeal process, I introduced Intro. 261/2006. Thislegislation would re-establish the review process overvariance and special permits decisions, previouslyheld by the former Board of Estimate, under theauspices of the City Council.

The City Council already has jurisdiction in land usematters under the Uniform Land Use ReviewProcedure (ULURP). Adding this review processwould strengthen the ULURP procedure and addbalance to this area of land use decision-making.

I authored two other bills in a further attempt to address the total control of the mayor in appointingmembers to the board.

Intro. 263/2006, if enacted, would expand thenumber of BSA commissioners from five to thirteen,with the eight additional members to be appointed,one each, by the borough presidents, public advocate, comptroller and City Council.

The five mayoral appointees would remain; but theirvoices would be tempered by those of the eight additionalmembers. Obviously, this would enable elected officials to better serve their constituents by having directrepresentation on the board.

As a companion bill to Intro. 263, I introduced Intro. 262/2006, which would require that all variance andspecial permit decisions by BSA be made by atwo-thirds majority of the quorum present and voting.Once the membership of BSA is expanded to 13 members, requiring a two-thirds majority vote would ensure thatdecisions of such magnitude are addressed by asubstantial majority of the board.

This past February, I introduced Intro. 695/2008,which would require one of the members of BSA tobe a financial analyst with professional qualifications.Since one of the five variance criteria involves thereview of an alleged financial hardship, it only makessense to have a member of the Board who has thefinancial background to determine the legitimacy ofany such claim by a developer.

I am also in the process of writing legislation thatwould change the statute of limitations for filingan Article 78 proceeding challenging BSA decisions,from thirty days to four months.

The current 30-day time frame presents an unnecessarilyharsh procedural hurdle. The very short time frame withinwhich an Article 78 petition must be filed makes such challenges extremely difficult to execute due to the cost and extensive preparation that is required in bringing these actions before the Supreme Court.

The majority of Article 78 BSA cases are brought byaggrieved citizens who need a significant amount oftime to come up with funds to retain counsel, and forcounsel to properly prepare the necessary petitions andaccompanying documents that must be filed. Making thischange in the law would provide residents and communitygroups the necessary time to properly develop and file anArticle 78.

The passage of any of these bills would make asignificant impact on how BSA operates and allow foradditional community input and a more balanced decision making process.Having said that, I have come to believe that BSAdecisions are so skewed in favor of developers thatthe entire system must be scrapped.

After personally testifying before the board on numerous variance applications on behalf of the community,not only those within my City Council district, but other neighborhoods/boroughs as well, I have come to realizethat the entire process is a charade.

It is extremely disheartening to watch neighborhoodresidents travel to the BSA office in lower Manhattanfor hearing after hearing to contest a variance application,only to see the commissioners vote in unison to approve the application.

It has become a BSA routine; whereby multiple hearings areheld on an item until; it would appear, the community is simply worn down. It is almost impossible for the averageperson to continuously take time off from work or otherduties to fight the developers.

In the final analysis, while most people do not know this agency even exists, it has had and continues to havea dramatic and damaging effect on the residentialcharacter of neighborhoods throughout our city byallowing developers to circumvent the zoning – in manycases ruining the quality oflife for millions of New Yorkers. It is time to end this sham and close what is the biggest loophole for developers.

CORD HISTORY:

With the "Protect Our Homes" petition, CORD was formed in May, 2007. This petition arose as an overwhelmingly negative response to the coming of the over-sized 360 Smith Street Development at the corner of Smith Street and Second Place (Aka Oliver House; aka 131 Second Place). This petition, which had well over three thousand signatures, led to a new zoning text amendment in summer of 2008.

To: Our Elected Officials, Community Leaders, The MTA:(MAY, 2007)

We the undersigned Carroll Gardens homeowners and residents, are appalled by the "as of right" ruling which allows owners and developers to erect buildings in our neighborhood with no regard to the impact they will present to our quality of life and the value of our homes........http://www.petitiononline.com/mod_perl/signed.cgi?crlgrdns

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